[Senate Hearing 118-456]
[From the U.S. Government Publishing Office]
S. Hrg. 118-456
HEARING ON OVERSIGHT OF TOXIC SUBSTANCES
CONTROL ACT AMENDMENTS IMPLEMENTATION
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HEARING
BEFORE THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JANUARY 24, 2024
__________
Printed for the use of the Committee on Environment and Public Works
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
57-203 WASHINGTON : 2025
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
THOMAS R. CARPER, Delaware, Chairman
SHELLEY MOORE CAPITO, West Virginia, Ranking Member
BENJAMIN L. CARDIN, Maryland KEVIN CRAMER, North Dakota
BERNARD SANDERS, Vermont CYNTHIA M. LUMMIS, Wyoming
SHELDON WHITEHOUSE, Rhode Island MARKWAYNE MULLIN, Oklahoma
JEFF MERKLEY, Oregon PETE RICKETTS, Nebraska
EDWARD J. MARKEY, Massachusetts JOHN BOOZMAN, Arkansas
DEBBIE STABENOW, Michigan ROGER WICKER, Mississippi
MARK KELLY, Arizona DAN SULLIVAN, Alaska
ALEX PADILLA, California LINDSEY O. GRAHAM, South Carolina
JOHN FETTERMAN, Pennsylvania
Courtney Taylor, Democratic Staff Director
Adam Tomlinson, Republican Staff Director
C O N T E N T S
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Page
JANUARY 24, 2024
OPENING STATEMENTS
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware.. 1
Capito, Hon. Shelley Moore, U.S. Senator from the State of West
Virginia....................................................... 3
WITNESS
Freedhoff, Hon. Michal, Ph.D., Assistant Administrator, U.S.
Environmental Protection Agency, Office of Chemical Safety and
Pollution Prevention........................................... 5
Prepared statement........................................... 8
Responses to additional questions from:
Senator Carper........................................... 20
Senator Whitehouse....................................... 27
Senator Merkley.......................................... 32
Senator Markey........................................... 32
Senator Capito........................................... 34
Senator Lummis........................................... 48
Senator Ricketts......................................... 53
Senator Sullivan......................................... 58
ADDITIONAL MATERIAL
Article from E&E: Ellie Borst, EPA goes after plastics with
chemicals plan................................................. 66
Report on Critical PFAS Substance Uses........................... 80
Letters to Senator Carper and Senator Capito from:
Alliance for Chemical Distribution and 21 other associations. 120
American Coatings Association (ACA).......................... 122
American Chemistry Council (ACC)............................. 127
American Fuel & Petrochemical Manufacturers and American
Petroleum Institute........................................ 128
American Cleaning Institute.................................. 130
Global Clean Energy.......................................... 131
Solugen, Inc................................................. 133
Univar Solutions............................................. 136
Report from American Chemistry Council: Impact of Rising
Regulations on Chemical Manufacturing & American Priorities.... 137
HEARING ON OVERSIGHT OF TOXIC SUBSTANCES CONTROL ACT AMENDMENTS
IMPLEMENTATION
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WEDNESDAY, JANUARY 24, 2024
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The committee met, pursuant to notice, at 10:01 a.m. in
room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper
(chairman of the committee) presiding.
Present: Senators Carper, Capito, Whitehouse, Merkley,
Markey, Fetterman, Cramer, Lummis, Mullin, Ricketts, Boozman.
OPENING STATEMENT OF HON. THOMAS R. CARPER,
U.S. SENATOR FROM THE STATE OF DELAWARE
Senator Carper. Good morning, everyone. I want to start by
welcoming our witness, Dr. Michal Freedhoff, the Assistant
Administrator for the Office of Chemical Safety and Pollution
Prevention. Michal, as most of you know, is no stranger to EPW
or to the issues we are going to be discussing today, having
worked on this Committee with us for a number of years and also
previously for Senator Markey, although he says he worked for
her, in both the House and Senate.
In 2016, Michal was one of the lead negotiators of the
Frank R. Lautenberg Chemical Safety for the 21st Century Act,
the first reform to the Toxic Substances Control Act, TSCA, in
approximately 40 years. A number of us worked tirelessly
alongside our staff and colleagues on and off of this committee
to support the bipartisan reforms in the Lautenberg Act. These
reforms would help ensure that TSCA worked as Congress intended
to protect the health and safety of Americans and our
environment, while also allowing for innovation and competition
within industry.
The task of protecting the health of our families,
communities, and environment, while also continuing to advance
chemistry that enriches our lives, is no easy feat. It takes
skill and experience to navigate the complexities around the
implementation of this law. Through TSCA, Congress has charged
the EPA with this demanding responsibility.
Since we last welcomed Dr. Freedhoff before the Committee
in 2022, I want to share some of the progress that has occurred
in relation to the implementation of TSCA. The first 10
priority chemical reviews that were established in 2016 have
been completed. The Biden Administration has already begun to
publish proposed rules for these chemicals, some of which are
known carcinogens.
The EPA has also launched several initiatives to prioritize
and streamline new chemical reviews for chemicals associated
with batteries, with clean energy technologies, and with
semiconductors to more quickly deploy investments from the
Bipartisan Infrastructure Law and the Inflation Reduction Act,
major pieces of which were discussed and debated right here in
this room. According to the EPA, since June 2023, the agency
has more than doubled the average amount of new chemical
reviews that they are able to complete each month. This means
EPA is addressing the backlog of chemicals awaiting review,
while also reviewing new submissions.
As the members of this committee have often heard me say,
everything I do, I know I can do better. The same is true with
respect to TSCA. As we gather here today, my hope is that this
hearing will offer us an opportunity to reflect on and discuss
what is working better and what can be done to further improve
the implementation of this critical law.
Let's be clear: there is still more work to be done. The
EPA needs adequate support from both Congress and the
Administration to meet the expectations set into law by those
of us who helped write the Lautenberg Act. As Dr. Freedhoff
will highlight in her testimony, the EPA has been tasked with
high expectations and a heavy workload, but has not always been
equipped with the necessary funding to complete this technical
work. Congress needs to ensure that the EPA has the appropriate
resources to implement TSCA as intended.
Further, we know that the EPA is updating its fees rule to
be able to more effectively collect revenues from chemical
manufacturers. This is an important part of the funding
equation, and we look forward to hearing more from Dr.
Freedhoff about this effort.
Insufficient resources, over the course of multiple fiscal
years, have led the agency to miss deadlines and delay
decisions. This situation has created grievances from both
those in industry pushing to get their chemicals to market and
from environmental advocates eager to see harmful chemicals
regulated.
As Dr. Freedhoff will relay today, the EPA is implementing
a law that is written to the best of their ability. That said,
we hope today's discussion will help us determine what further
actions the EPA can take, or what additional resources Congress
can provide to better support the Lautenberg Act's
implementation.
In closing, let me just to reiterate a couple of things.
First, I am committed to working together with Senator Capito
and all the members of this committee to ensure that we are
providing the agency with the resources it needs in Fiscal Year
2024. Second, we will continue to collaborate with the EPA and
request transparency in the agency's actions as they work to
protect us from harmful toxins while allowing chemistry to
usher in a new world of clean energy and lifesaving
technologies.
Dr. Freedhoff, we look forward to hearing from you today,
and welcome back.
With that, let me turn to our Ranking Member, Senator
Capito for her opening remarks. Senator Capito?
OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Capito. Thank you, Chairman Carper. Thanks for
holding the hearing, and Dr. Freedhoff, thank you for being
here. Thank you for coming to my office last week. I think we
had a very fruitful discussion and very substantive. I
appreciate that.
For 3 years, the Biden Administration has been implementing
the 2016 TSCA Amendments. Yet the slow pace, and the Chairman
talked about this, of new chemical approvals has not improved.
The scapegoat of blaming the prior administration is no longer
holding water. Three years is long enough to take the reins.
Reviews are regularly blowing past the deadlines by months,
but in some cases years. Approving submissions within the
deadline is not an aspirational goal, it is a legal obligation
for the EPA to ensure that innovation is not stifled by
bureaucracy.
Agency timeliness in the chemical space is crucial to
maintaining a competitiveness in the global market and also
achieving what I believe, a point of bipartisan agreement,
expanding key industries and onshoring critical supply chains
right here in this Country. Chemical manufacturers in China are
more than happy to fill the void of U.S.-based companies that
are stuck in regulatory purgatory by the EPA.
The slow pace of new chemical approvals forces continued
reliance on older chemistries that may have not just lower
performance by higher risk profiles and fewer environmental
benefits than newer alternatives. According to a 2022 survey of
American chemical manufacturers, 70 percent reported that they
have decided to introduce new chemicals and therefore make the
requisite investments in job creation outside of the United
States. Let me repeat that: they have decided to introduce
their new chemicals outside of the United States.
Slower reviews create a negative spiral for the EPA's own
work. Slower reviews means fewer submissions, and with fewer
submissions, the agency collects fewer fees to implement TSCA.
In addition to the slow pace, a troubling zero-risk
approach at the EPA has taken hold of the TSCA program. Since
2021, the number of cases that have received a determination of
``not likely to present risk'' has dropped by 75 percent. It
seems that no volume of data provided by applicants is
satisfactory to the EPA to drop its predisposed worst-case
assumptions of risk.
Previously, you stated that it is the submitter's
responsibility to come in earlier to talk about the data that
your assessors require. Those that have heeded that advice have
not had positive things to report back. Stakeholders have
complained of a lack of responsiveness from the EPA staff,
moving of goalposts and presumptions of denial at the start of
the process as well as a failure of the EPA to consider data
and approvals from regulators in Europe and Asia. In short,
they found no benefit from making contact with the EPA early
and often.
Your office seems to also have a mission creep where no
data can satisfy risk assessments. The EPA is intruding on
other agencies like OSHA, Occupational Safety and Health
Administration, to which Congress has provided relevant
authorities. The zero risk approach undermines the intent of
the 2016 Amendments, and ironically, will hamstring the Biden
Administration's ability to realize its own goals.
As an example, in 2023, the EPA selected a company to
receive a green chemistry challenge award for developing a new
bio-based chemical feedstock that would significantly
decarbonize the chemical industry. Meanwhile, when that same
chemistry went through the TSCA review process, it received
such stringent restrictions that it can no longer be
commercialized.
Unfortunately, this is just one of the many examples of the
profound disconnected between the new hazard-based
interpretation of TSCA and the Biden Administration's so-called
onshoring efforts. It is the same disconnect that has the EPA
mulling proposed rules to destroy domestic semiconductor
manufacturing by effectively prohibiting essential chemistries,
despite Congress and the Biden Administration doling out tens
of billions of dollars to stand up capacity here. I fear the
program is in a worse State now, maybe, than before the
Lautenberg Act was passed.
We may not agree on everything, but we can at least agree
that the status quo needs to change. It is not lost on me that
you didn't receive all the resources that you would like.
However, simply throwing more money at the problem while doing
nothing to change the underlying structural issues is not a
solution, and Congress has made more resources available.
The EPA hired almost 2,000 new employees last year, but
somehow the TSCA program struggles to fill vacancies that have
been open for years. It is concerning to me to hear, and we
talked about this last week, that it has taken 2 years to hire
a single person under the Title 42 authority that Congress
provided in 2022.
It is also troubling that the Office of Inspector General
criticized the OCSPP, Office of Chemical Safety and Pollution
Prevention, for its lack of standard operating procedures and
outdated guidance to more effectively onboard new staff. If
resources are a problem, then why at a time when 70 percent of
guidance documents and standard operating procedures for the
new chemical programs are out of date is the EPA announcing
that it is expanding resources for elective programs without
statutory authorization?
Examples like this give me the impression that TSCA's
programs resource demands and programmatic workload arbitrarily
grow every year, no matter what resources Congress makes
available for the policies that we choose to prioritize. During
today's hearing, I expect that will once again hear about the
need for more resources and we will consider that request as
the Chairman mentioned.
More valuable will be learning how you intend to allocate
the resources you have and what transparent commitments you are
willing to make to improve management of and tangibly
accelerate the review process. I shared with you in advance
some of the ideas that we have to achieve that goal together,
and I hope we can discuss those this morning.
Thank you, Chairman Carper.
Senator Carper. Thank you so much.
We are now going to turn to our witness. We are pleased to
welcome you back to our committee today. Dr. Mihal Freedhoff is
the Assistant Administrator of the Office of Chemical Safety
and Pollution Prevention at the Environmental Protection
Agency. Dr. Freedhoff has more than 20 years of government
experience and service, the majority of which were spent on
Capitol Hill, and many of which were spent literally in this
building.
She began her congressional service in 1996, as I mentioned
earlier, in the office of then-Congressman Ed Markey as a
congressional science and engineering fellow, after earning a
Ph.D. in physical chemistry at the University of Rochester.
With environmental expertise spanning a range of policy areas,
her legislative work includes the 2016 reauthorizing of the
Toxic Substances Control Act, 2019 legislation to address PFAS
contamination, the fuel economy provisions in the 2007 Energy
Independence and Security Act, and the law requiring creation
of an online data base of potential consumer product safety
defects.
Before you begin your testimony, Dr. Freedhoff, I have
heard a number of people say to me, I have never met anybody
named Mihal. Where does that name come from? For those of you
who are steeped in the scripture, you may remember the story of
David and Bathsheba. They had a son who sadly died, and he
ended up having other wives, one of whom was named Mihal. Mihal
became the mother of a guy named Jedidiah. Jedidiah became King
Solomon, one of the wisest men who ever lived. This is a new
generation of Mihal. She has quite a history in her lineage,
and we welcome you warmly back to the committee where you spent
so many years.
Please proceed. Thank you.
STATEMENT OF HON. MICHAL FREEDHOFF, PH.D., ASSISTANT
ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF
CHEMICAL SAFETY AND POLLUTION PREVENTION
Ms. Freedhoff. Good morning, Chairman Carper, Ranking
Member Capito, and other members of the committee. Thank you
for the invitation to testify about the Toxic Substances
Control Act, or TSCA. It is always a pleasure to come back to
EPW.
When I was last here, I described how years of underfunding
had delayed our work to put essential protections in place for
communities across our Country, and delayed our ability to
review the new chemistries needed to power our economy. While
those problems have not entirely been solved, and will not be
at current funding levels, I am proud to say we have come a
long way.
The promise of the new law was for EPA to evaluate tens of
thousands of existing chemicals left unreviewed under the old
law and to write rules to protect people. We are finally
starting to make good on that promise. We proposed rules for
five dangerous chemicals that would collectively protect 1
million workers and 15 million consumers. We feel a strong
sense of urgency to get these and another four rules we have
yet to propose across the finish line.
I can also assure you that I have personally met with
companies who think our proposals miss the mark for some uses.
We are taking their input seriously and will be making some
needed adjustments along the way.
We are also working on our risk evaluations. We have
released two drafts and expect to finalize seven this year.
Last month, we announced the next five chemicals we expect
to evaluate, including vinyl chloride, a cancer-causing
chemical that was one of the examples used by the Nixon
Administration when they first came to Congress and asked
Congress to write the original TSCA. Before we even named those
chemicals for the very first time, we also asked a very wide
range of stakeholders for their input and their data so that we
can get a jump start on those evaluations and come closer to
meeting our deadlines.
We are expanding our scientific toolbox for risk
evaluations with approaches that focus on the most concerning
exposures, efforts to improve our understanding of occupational
safety practices, and ways to account for exposures to the most
vulnerable populations. These changes will help ensure that the
people who need chemical safety protections get them and get
them faster.
EPA also plays an important role in ensuring the safety of
new chemicals. If the 2016 requirements that EPA formally
evaluate the risks of all new chemicals before they were
allowed into commerce had been the law all along, our people's
pollution story, for example, might have had a very different
ending. I know there are continuing concerns that we are not
moving fast enough to get new chemistries to market, and I know
there is more we can do. I refuse to accept that we have to
choose between safety and speed.
With the budget increase, we hired 14 new chemical staff
with 7 more hires in the works which were much-needed
reinforcements for a staff that had been stretched razor-thin.
We have standardized our review approaches for some of the
approaches used in batteries and semiconductors. We have
developed a framework for new PFAS which will ensure their
continued availability for sectors like the semiconductor
industry.
We have prioritized the review of the new chemicals we need
to support the Biden-Harris Administration's domestic
manufacturing initiatives, and now review those in a third of
the time compared to other sectors. By any objective standard,
these efforts are working.
In Fiscal Year 2023, we completed 70 percent more risk
assessments compared to Fiscal year 2022. Since June, we have
more than doubled the monthly average number of completed risk
assessments as compared to the year before. We have cleared out
about 50 percent of the older backlogged cases.
The truth is, we are not able to achieve all that TSCA was
expected to. The problem is clear: TSCA is underfunded. It is
the conclusion of EPA's analysis, the Inspector General, and
GAO.
The solution is equally clear. We do not need to change the
law. We need funding to implement the law we have.
Full funding would mean 25 new hires to review new
chemicals. It would mean we could modernize our IT more
quickly, modernize our procedures and science more quickly, do
more industry outreach and come closer to meeting that 90-day
deadline for reviewing new chemicals.
Full funding would allow us to hire 75 new people to finish
our risk evaluations and rules more quickly, which means that
the protections workers and communities have been waiting for
decades will also come more quickly.
No matter what our budget is, you have our assurance that
we are going to continue to build the foundation for a chemical
safety program that can deliver both the protections and the
regulatory certainty that Congress envisioned in 2016.
Industry and environmental organizations all know that our
door is always open, and I hope you will not hesitate to ask
for additional briefings, calls, or answers to your questions.
If a visit to companies or communities in your home State would
help, we will do our best to make it happen. We all want the
law to work as Congress intended, and I am fully committed to
doing whatever it takes to get there.
Thank you again, and I look forward to your questions.
[The prepared statement of Ms. Freedhoff follows:]
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Senator Carper. Thanks so much for your testimony and for
being with us today. You have been consistent in your testimony
to this committee that EPA has not had adequate resources
needed to fully implement the Lautenberg Act. I think most of
us will agree that funding for the program can come from two
different sources, as we know, user fees generated by EPA and
annual appropriations provided by us, and Fiscal Year 2023
received some additional resources from Congress, as you know,
though while still short of the President's request.
The EPA is also working to improve its ability to collect
user fees.
Would you give us a sense of what the EPA was able to do
with the increased funding in Fiscal Year 2023? I know you have
touched on this to some extent, but I think it deserves some
additional attention. What more would the EPA be able to do if
the agency received additional funding through both annual
appropriations and more effective user fee collection?
Ms. Freedhoff. Thanks very much for that question, Senator
Carper. We have really prioritized hiring with that additional
pay increase, or funding increase, and have especially focused
our efforts on the New Chemicals Division, because we really do
agree that that was the area that was most under resourced as a
result of the new law, which basically changed what our past
practice had been, which was reviewing 20 percent of new
chemicals before they go into commerce to doing 100 percent of
new chemicals before they go into commerce. Five times the
amount of work, and for 6 years, zero extra dollars with which
to do it.
In addition to prioritizing hiring and getting people in
the door and trained as quickly as possible, we have also
really tried to standardize our approaches for chemistries that
we know industry comes in with a lot of applications for. For
example, we have been working to create a standardized and
streamlined review process for the chemicals that are needed by
the battery sector. We have a years-long collaboration with the
semiconductor sector, and that has resulted in a regulatory
path forward for dozens of the photo-acid generators that they
need to do their work. I personally met with them a couple of
weeks ago and we talked about expanding that collaboration in
the future.
We have really tried to work smarter, not harder, which is
something Senator Markey often says, and are going to continue
to do so with the funding that we have. If we got more, we
would be able to modernize those standard operating procedures
more quickly. We would be able to modernize our science
policies more quickly. We would be able to create efficient
approaches for classes of chemistries more quickly, and of
course, we would also be able to write rules more quickly and
do risk evaluations more quickly, which would move through the
tens of thousands of chemicals that were left unreviewed under
the old law more quickly as well.
Senator Carper. All right, thank you.
Before I turn to Senator Capito for her questions, I have
one more I want to ask. In 2018, the previous Administration,
you will recall, promulgated a user fee rule that was based on
faulty data, which has limited the EPA's ability to collect
user fees as intended by those of us who worked to pass the
Lautenberg Act.
The Biden Administration has been working to update this
data and revise the rule. Would you please explain to us where
the previous rule went wrong, and how the Biden rule is
proposing to correct is? Also, when do you anticipate the new
rule will be finalized?
Ms. Freedhoff. Sure, thanks for that question, Senator
Carper. The Congress expected the EPA would write a fees rule,
and collect 25 percent of our authorized TSCA costs from fees.
The first fees rule didn't collect any fees until Fiscal Year
2019, and it exempted the cost of the first 10 risk evaluations
from being subject to fees at all. Those were by far the most
expensive thing that the agency was working on in those first 4
years of the law.
As a result, we only collected a couple of million dollars
a year, $2 million to $5 million a year in the first couple of
years under the new law. Moreover, to calculate the 25 percent
baseline, the previous administration used the cost of the old
TSCA before it was revised to expand EPA's authority. As a
result, overall, that first fees rule collected less than half
of the 25 percent of authorized TSCA costs that Congress
expected it to collect.
We have done things differently. We have tried to heed
congressional direction to reflect the accurate costs of
implementing the law in our proposed fees rule. I think that
rule is in the final stages of review at OMB, and I expect it
to be finalized in the coming weeks.
Senator Carper. Good, thanks. Senator Capito?
Senator Capito. Thank you. I mentioned the document that we
had shared earlier, last week, and you all came back with some
responses to that on ways that we could improve the system. I
wanted to get your initial reaction on any of these you think
would help the most, maybe prioritize one, two, or something of
that nature.
Ms. Freedhoff. Sure. Thanks again for the constructive
meeting we had, Senator Capito. I always appreciate the way you
and your staff work with the agency since I have been there,
and of course on the Hill as well, when I was here. I thought
your list had a lot of really good ideas in it and I think
there is a few I feel we can commit to, as long as our budget
is not cut.
First, there was a program called the Sustainable Futures
Initiative that existed before the law was changed. The purpose
of that program was for EPA to help industry write better new
chemical submissions, do training, technical assistance, and
that sort of thing.
Assuming our budget is not cut, we would like to hire
someone who is entire job it will be to revamp the Sustainable
Futures Initiative, and build on the outreach industry that we
have been doing over the past few years, to help them help us,
really, in reviewing new chemicals.
Another thing that your list said, that sometimes we use
models instead of industry submitted data, and there was sort
of an interest in getting more transparency from us on why we
might choose to do that if we have actual industry data. We
think that is a great idea and are absolutely able to commit to
that.
Senator Capito. I am going to stop you there, because I
will have an additional, on the resource issue, because this
keeps coming up. The budget has gone up, and I mentioned in my
opening statement the interest in Title 42, which used to be
the universal title that does everything, but it gave you an
opportunity to get some highly specialized individuals.
You have had this ability for 2 years and have not used it.
It is hard for me to square, I need more resources, when we
gave, as a Congress, you an ability to really specialize here
and it hasn't been used. What kind of assurances are more
resources going to solve this issue?
Ms. Freedhoff. I totally appreciate the question. We are
actually really excited about that authority, although it seems
that we have not used it.
Senator Capito. You and only one other entity has that
ability.
Ms. Freedhoff. It took us more than a year to kind of do
the administrative things we needed to do, both within the
agency and with OPM to get the all clear to actually use the
authority. We have not had the clearance to use it for two full
years.
We do want to use it, and I think the very first place we
would use it is in the New Chemicals program. Having a senior
scientist who can really help us modernize those processes
would be great.
I will also say, though, that those hires cost more money.
Senator Capito. Right.
Ms. Freedhoff. When we are balancing, can we have three
risk assessors, or one senior scientist, we are not quite
comfortable yet to put our money on the senior scientist. We
are getting there.
Senator Capito. Well, I would hope that authority, since it
is so unusual, and I think could be impactful, just on the face
of it having a senior scientist and then having younger, newer
hires coming in would have a mutual benefit there as well.
Let me ask you, one of the suggestions was sort of a mid-
review meeting, a mid-stage meeting between engineering team
members and submitters. You were pretty negative about that
when we talked earlier last week. I do think, and I think some
of the stakeholders feel that if they can see where they are
before they get into the engineering phases and other more
technical phases of the assessments, so they could make the
adjustments mid-stage instead of waiting toward the end, what
would your response be to something like that? Seems to me that
would benefit both sides of the submission.
Ms. Freedhoff. I did take that back to my staff. They do
feel like it could have the unintended consequence of slowing
not just that application down, but other people's applications
down as well. We did have two other ideas that we think get to
the same problem that you are raising.
First is, we encourage companies to come in and have
presubmittal meetings with us. We do not always have engineers
in those meetings, and we could. I think that would be one way
for companies to sort of get a reality check on what
information they might want to include in their package before
they even send their package to the agency.
The second thing we are able to do now that we have some
more staff is actually create a second queue, a different line
for those applications that are almost at the end of the
process, but something in the engineering changes and they need
a little rework before they can get it over the finish line.
Senator Capito. Right.
Ms. Freedhoff. We actually want to create a dedicated, a
tiger team of people whose job it will be to get those
applications over the finish line more quickly. We actually
think that might be a faster way of getting at the problem.
Senator Capito. Yes, I think that makes a lot of sense. One
thing I would say is, in talking with submitters ourselves
about this mid-evaluation meeting, I think their opinion sort
of anecdotally would be, if I can get more clarity, more
procedural clarity mid-way through the process, I will take a
longer process. In the end, it ends up being longer anyway.
I would just put that on your plate with everything else.
Thank you, Mr. Chairman.
Senator Carper. Thank you very much.
Senator Boozman, you are next. Welcome, and good morning.
Senator Boozman. Thank you, Mr. Chairman.
Thank you for being here, we appreciate your many years of
service in lots of different ways.
Section 9 of TSCA requires EPA to consult and coordinate
with other Federal agencies on its TSCA activities for existing
chemical reviews, to maximize enforcement and reduce
duplication. Longstanding executive orders also require
interagency reviews of significant EPA actions.
I guess the question is, why hasn't EPA sought feedback
from other agencies like USDA, FDA, the Small Business
Administration, Department of Defense on its soon-to-be-
released draft of the TSCA risk evaluation of formaldehyde?
Ms. Freedhoff. Thanks very much for the question, Senator.
We actually engage more across the executive branch than I
think had previously been done. We have an interagency TSCA
group that includes membership of DOD, the Ag Department, FDA.
It meets almost monthly, every month or two, I think. We do
talk to them in a very proactive way about the work that we
expect to be coming up. We talk to them about the chemicals
that we have just put onto the TSCA process before those
chemicals were named to the public.
We are actually doing a lot of very proactive engagement
with the rest of the Federal family. We will certainly be doing
that when it comes time to release our draft formaldehyde risk
assessment as well.
Senator Boozman. I understand the problem of being
underfunded. Also, I do think there is a lot of stove piping.
We should be working more interagency. Here is what the Small
Business Administration said in their file comments last month
on your risk evaluation framework rule. ``EPA should commit to
a robust interagency process for a review of the draft and
final risk evaluations.'' Unfortunately, neither the preamble
nor the current EPA practice reflect the commitment to
interagency collaboration. EPA's risk evaluations ``create a
significant risk that the resulting risk management regulations
will impose unnecessary and duplicative burdens on small
businesses with minimal public benefits.'' ``It is not good use
of EPA's resources to duplicate the effort and expertise of
these other Federal offices.''
Ms. Freedhoff. I think we greatly value the input from
other Federal agencies that we get during the risk evaluation
process and the risk management process, which does go through
formal interagency review. We have been proactively reaching
out to the agencies that we know use some of the chemicals that
we are looking at to make sure that we account for critical
uses and needs that they might continue to have.
I think those conversations are going very well. I have
personally been involved in many of them. We do take that
responsibility to talk to the other agencies extremely
seriously.
Senator Boozman. I have the opportunity to serve also as
Ranking Member on the Agriculture Committee. Formaldehyde is
something that many users use there to keep us safe and keep
our food supply safe, keep it affordable. Farmers use
formaldehyde to reduce virus infectivity in pigs, as a barn
disinfectant, protect against African swine fever. Egg
producers rely on formaldehyde during incubation to help
protection hatchling eggs against bacteria like salmonella.
Animal feed, again, the list goes on and on.
Is it true that the EPA is considering an existing chemical
exposure level for formaldehyde which is lower than the levels
of formaldehyde humans exhale as much as 16 times below
exposure levels set in European jurisdictions?
Ms. Freedhoff. First of all, let me just say that we have a
great relationship with your staff on the Senate Ag Committee,
same with Senator Stabenow's staff. We view that relationship
as extremely constructive and collaborative. I would also note
that the pesticidal uses of formaldehyde are not subject to
TSCA.
Getting to your question about the exposure limits, we have
not calculated a level like that for formaldehyde yet. It is
something that we do at the end of our draft risk evaluation
process. We have not published one.
I can commit to you that if the risk evaluation, which by
law is not supposed to consider costs and other non-risk
factors like the ones you are raising, if we end up with a
level like that in the draft risk evaluation, it can not be
measured because it is below background, we will say right in
the draft risk evaluation that it will not be the thing that we
would propose to do in our rule. We are not going to propose
something that can not be met, if that is the way it turns out
in our risk evaluation.
Senator Boozman. I would hope not. Thank you.
Senator Carper. Senator Boozman, good to see you. Thanks so
much.
Senator Mullin, how are you?
Senator Mullin. Good, thank you. Good to see you.
Ma'am, thank you for being here. This committee has been
focused on plastics for quite some time. As I always like to
say, almost a war on plastic. I want to be very careful as we
are moving forward that the EPA is actually working with
industry, not just working with activists and knowing where we
are headed.
I do have some concerns, because last month the EPA
announced five more chemicals for prioritization underneath
TSCA, all of which use plastics, the chemicals that they are
using all goes toward plastics, including vinyl chloride, which
is a chemical used for PVC piping. Obviously, that is something
I am very familiar with, and it raises alarms, because we use
PVC piping in almost all your homes now, either through your
drainage or your water, most of our drinking water is delivered
through PVC piping.
When we start looking at eliminating, there's a lot of
questions that say, OK, what are you going to do then?
Obviously, what are you going to replace it with?
You were quoted recently in a press release, you chose to
quote a partisan, what I would consider very partisan, radical,
anti-plastic activist and president of Beyond Plastic named
Judith, I will leave her last name out of it. The article,
Chairman, that I would like to enter into the record from E&E
News, December 14th, a quote that Dr. Freedhoff credited, that
meeting with Judith is making a real difference as we move
forward to make these decision.
Senator Carper. Without objection.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Mullin. Thank you. My question, ma'am, is when you
go on a victory lap with activists and include their quote
directly under your press release, how do manufacturers,
contractors, that work in industry have any confidence that
this is not just some activist move driven by and prejudged
before it even comes out?
Ms. Freedhoff. Thanks for the question. I think that any of
the stakeholders who work on TSCA, whether they are companies,
whether they are families who have lost family members because
of exposures to chemicals, environmental organizations, labor
organizations, other Federal agencies, there is not any of them
who would say that they feel like me or my staff are not
accessible to them, do not listen to them, and are not doing--
--
Senator Mullin. Being accessible is different.
Ms. Freedhoff. And are not attempting to fairly implement
the law.
Senator Mullin. I think being accessible is not the
question here. When you quote an activist in your paper, when
you are releasing information that you are going after plastics
and you are quoting the president of an activist group that is,
you know, Beyond Plastics, and you didn't quote any industries
in there. When you got a movement toward that to begin with,
being accessible does not mean you are listening, does not mean
you are taking the industry into account or what is the next
step for the industry.
A lot of people listen in Washington, DC. They already had
their mind made up where they are headed. When you quote
someone like that, it would obviously send shockwaves to the
industry saying that your mind is already made up before you
even made this decision that you are looking into it.
I am asking, how can they be confident that you are
actually taking them into consideration?
Ms. Freedhoff. First of all, I would say we met with the
industry to tell them what our short list of chemicals was
before we met with any, with that particular organization.
Second of all----
Senator Mullin. Why would you choose to name and to quote
her?
Ms. Freedhoff. I think there is an undeniable interest in a
large part of the community in taking a look at the chemicals
that are used to make plastic. Vinyl chloride was actually the
example used by the Nixon Administration in the 1970's for why
Congress should write a Toxic Substances Control Act in the
first place.
I assure you, we have a multi-year scientific process that
precedes any regulatory decisions. We have not even started
that process. We are committed to being there----
Senator Mullin. When you say multi-year, what are you
talking about? Like so before your decision is coming out on
anything, you are going to spend years studying this?
Ms. Freedhoff. Correct.
Senator Mullin. What does that look like?
Ms. Freedhoff. In the next year, what we are trying to do
is work with Federal agencies, industry, other organizations to
get data and really sort of get ahead of our risk evaluation
process so we can meet our deadlines. After this year passes,
the law gives us three to three and a half years to actually
finish the draft risk evaluation.
There will be multiple public comment periods as well as a
peer review of the draft risk evaluation during that time.
Really, an enormous number of opportunities for companies to
provide their perspective and give us their data. It is only
after that that we would move to proposing a rule for vinyl
chloride. I can assure you with full confidence that nobody at
the agency has made up any, has any idea of what that rule
would look like. We have only just started.
Senator Mullin. Thank you. Thank you, Mr. Chairman.
Senator Carper. Thanks for those questions. We have been
joined by Senator Markey. While he prepares to ask some
questions, I do not think this was Richard Nixon, but one of my
favorite quotes is, people may not believe what we say; they
will believe what we do. I think that is something for us all
to keep in mind.
Senator Markey, welcome.
Senator Markey. Thank you.
Senator Carper. You must have a sense of deja vu here.
Senator Markey. Eleanor Roosevelt said, ``I do not see the
things which have been done, but only those things which remain
to be done,'' which I think fully reflects the philosophy of
our witness here today. There is more work to be done.
First of all, thank you to Dr. Freedhoff for decades of
work, including in my office to protect the public from
dangerous chemicals. As you know, I have fought for decades on
behalf of the families in Woburn, Massachusetts. In Woburn,
there was a boy named Jimmy Anderson. He was like any other kid
from Woburn, except that at 3 years old he was diagnosed with a
rare form of leukemia.
The kids in his neighborhood were like kids anywhere around
Boston, except that they were also being diagnosed with this
rare form of leukemia at an alarming rate in his neighborhood.
Because of their exposure to trichloroethylene, or TCE, these
children fell sick and died, deaths that may have been
prevented if we had laws in place that allowed us to ban the
use of these chemicals to begin with. Finally, last October,
you led the EPA in proposing to ban the use of TCE, an
incredible accomplishment.
That story became the book, A Civil Action, and then the
movie, A Civil Action, about those families. It was nominated
for an Oscar. Dr. Freedhoff, did the 2016 TSCA Amendments make
it finally possible to take action against TCE?
Dr. Freedhoff. Thanks, Senator. The answer is unequivocally
yes. I learned about the Anderson family from you, but it
wasn't until I started working on the TCE rule at EPA that I
realized that Jimmy would have been exactly my age if he hadn't
died as a kid. He might have been sending his kids off to
college, he might have had a life like mine.
It is not just his family. On the way to meet you that day,
when we announced the proposed rule, I phoned two other parents
who lost children and let them know that we were finally going
to be addressing the risks of TCE because Congress had finally
given the authority to EPA to do that.
Senator Markey. We were able to get it designated as a
Superfund site, to get it cleaned up. It is now the Jimmy
Anderson Transportation Center, named after that boy who Anne
Anderson had brought into my office when he was 9 years old,
asking for help. We didn't even have a law at that time, we
didn't have a Superfund law.
Senator Mullin asked about the listing of vinyl chloride
and what it means for companies. That is a fair question and I
am glad Dr. Freedhoff noted those companies are part of this
process. I want to raise another group of stakeholders here.
Next week will mark 1 year since the toxic train derailment and
chemical fire devastated East Palestine, Ohio and the
surrounding community. Vinyl chloride was the main chemical
being transported on that Norfolk Southern train, more than
887,000 pounds. I was glad to see EPA's recent announcement
that vinyl chloride is under consideration to be a high
priority chemical for regulation under TSCA.
Dr. Freedhoff, would an eventual ban or use restriction on
vinyl chloride help protect communities like East Palestine
from hazards ranging from work exposure to disastrous
explosions?
Ms. Freedhoff. Thanks, Senator. As I was saying to Senator
Mullin, our risk evaluation and our rule on vinyl chloride has
to go through very rigorous scientific process. The reason why
the Nixon Administration used vinyl chloride as one of the
three examples of why Congress had to write the Toxic
Substances Control Act was because they knew even then that it
caused liver cancer to workers.
I am sure that occupational safety practices are vastly
different now than they were in the 1970's. The truth is that
the original 1976 law that was supposed to ensure the safety of
existing chemicals never really lived up to that promise. What
the Nixon Administration said to Congress at the time, it is a
great quote, so I hope you do not mind if I read it.
Senator Markey. Please.
Ms. Freedhoff. This is what they said. ``We should no
longer be limited to repairing the damage after it has been
done nor should we continue to allow the entire population or
the entire environment to be used as a laboratory.'' That was
what the Nixon Administration said when they asked Congress to
write the original law.
The original law failed to protect people against existing
chemicals. The 2016 law that you and so many members of this
committee worked on has the potential, and I think we will be
able to see it realized, not just with TCE and vinyl chloride,
but with many of the other chemicals that are long overdue for
a look.
Senator Markey. It is not a ban on the transportation of
it, it is whether or not it should be manufactured at all,
because it is too dangerous.
Ms. Freedhoff. Or whether it should be manufactured and
used in a way different than it currently is.
Senator Markey. Yes. Thank you, Mr. Chairman.
Senator Carper. Thank you, Senator Markey. Senator Cramer,
welcome.
Senator Cramer. Thank you, Mr. Chairman, and thank you to
the Assistant Administrator for being here.
Thank you for the response letter to me and several of my
colleagues of both the House and the Senate regarding
chlorpyrifos and the Eighth Circuit's vacating of their final
rulemaking.
For the benefit of the dozens of people watching this
online somewhere, the farmers in the prairies and throughout
the Country, I want to ask you to drill down a little bit on
some of the specifics in response. Specifically, is the EPA
beginning the process of restoring, or how are you restoring
those tolerances? I will give you all of them up front and then
you can just elaborate.
To include like, timelines, if you have some specific
timelines, what has been done? I would also just add on behalf
of several constituents, they feel like the EPA has been
fairly, well, not very specific. Some of the statements since
the vacating of the rulemaking have not provided very much
clarity.
What I want to give you the opportunity to do over the next
4 minutes is provide that clarity for them, drill down a little
bit on the specifics, the timelines, the tolerances that will
restored, and what-not, if you could, please.
Ms. Freedhoff. Happy to do that, Senator. I actually met
with a bunch of the brewer groups yesterday on this question.
They told us about some of the confusion that some of the State
regulators have, and we are following up on that. We did try to
reach out to everyone in advance of our December statement, but
we will clearly need to do a better job and talk to more
people.
First of all, what the Eighth Circuit did was it vacated
EPA's rule that took away the permission to use chlorpyrifos on
food crops. That decision has already happened, and all of
those permissions to use chlorpyrifos on food are back in
effect.
EPA has to write basically a technical correction to the
Code of Federal Regulations. I think that is happening next
week, but it is already in effect.
I think the next thing that we are doing, and the timeline
on this I can not be quite as specific about, is the Eighth
Circuit decision as well as a 2020 document that the agency put
out on chlorpyrifos really focused on 11 uses of chlorpyrifos
that had high benefits. What we are working to do is talk to
the companies that make the pesticide in order to incorporate
some additional mitigations that were talked about in the 2020
decision, as well as some of the Endangered Species Act work
that we need to do in order to comply with that law.
I know those conversations are well underway. Since it is a
conversation with external parties, I can not be more specific
about when we will be finished.
Senator Cramer. The whole thing is about 2 months old. You
touched on the confusion that seemed to permeate the early
statements. All I would say, wrapping up, Mr. Chairman and
Madam Assistant Administrator, just be as clear as you can be.
This is very, while we are heading into, hard as it is to
believe in North Dakota today, we are heading toward spring,
and the new seasons and all of that. Everybody from the
manufacturers, the suppliers, the users themselves, the
producers themselves, that seek this clarity, it is critical to
get it done in a timely fashion. I appreciate your attempt.
Ms. Freedhoff. Absolutely, and if you get questions and
people are still confused, just send them to us. Our staff want
to be clear, also. It actually helps us when people come
straight to us and ask us the questions.
Senator Cramer. I appreciate that. Thank you very much.
Thank you, Mr. Chairman.
Senator Carper. Senator Merkley, if you are ready, you are
next in line, and then Senator Ricketts.
Senator Merkley. Thank you, Mr. Chairman, and welcome, good
to have you.
OMB is currently reviewing its Asbestos Part 1 rule for
chrysotile asbestos. Can you give us a sense of a date when the
final rule will be available?
Ms. Freedhoff. Thanks very much for that, Senator. As you
know, it is our first Section 6 rule that went through the new
process. It is not an accident that it was the first one,
because of the symbolic significance of the failed asbestos ban
from the 1980's, and the fact that asbestos continues to kill
tens of thousands of people every year.
It is at OMB, I think the 90-day period ends maybe in, I
think it ends in early March. It is hard to predict, though,
since it is not in our control, whether it will hit the early
March timeline or not. I know we are in very active
conversations with our agency partners and are really eager to
unveil that final rule.
Senator Merkley. Well, it takes continuous advocacy,
because things go to OMB and just disappear. It is like a, what
the hell happened to it. Keep pressing, and keep us posted on
that.
This rule only affects one form of asbestos. There are
seven other types of asbestos fibers. Does EPA have a plan to
address the additional asbestiform varieties?
Ms. Freedhoff. Yes. We are in the middle of Asbestos Part
2. As you might remember, when the last administration chose to
only study chrysotile because that form is the only form used
in ongoing uses, there was an adverse court decision that
caused the agency to have to split that risk evaluation and
rule into two. We are working on the second part of asbestos,
which includes the other forms and includes legacy uses, and it
includes reasonably available information on its presence in
talc.
We expect to both release a draft and final risk evaluation
for Part 2 in this calendar year.
Senator Merkley. OK. Thank you. I am glad to hear that.
One concern that we have heard about is in the peer review
process. EPA released peer review comments, and one reviewer
wrote that, ``The members of this panel who are reviewing this
document have been told, `we are not to talk to one another. We
have been told there will be no conference calls with one
another. We have been told there will be no face to face
meetings.' This is entirely inconsistent with the history of
EPA's Science Advisory Panels.''
I have concerns about that point. I have heard EPA saying,
well, we are not going to let people talk to each other because
we do not have enough funding, and we are not going to have
conference calls if we do not have enough funding.
A lot comes from people actually sharing their comments
with each other. Is this an accurate description of what is
going on? why is this a good process?
Ms. Freedhoff. Thanks very much for that question. First of
all, let me just say that we think the scientific advice that
we get from our peer review committee is invaluable. We really
do listen to what they say and take their input seriously.
I think it is also a pretty standard process though to do
peer review, to do letter peer reviews of scientific documents.
One of the reasons why we moved to doing that for Asbestos Part
2 is because a lot of the science, the exposure models and
other information that we are using for Part 2, we had already
had peer reviewed when we went through the Part 1 risk
evaluation.
We also felt that moving to a letter peer review in this
case would also really help us finish that Part 2 risk
evaluation more quickly.
I do not want you to come away thinking that we are
abandoning the peer review process. We are absolutely not. I
think we did choose for the first time to try a different
approach for this one, and part of the reason for that was our
sense of urgency in completing that risk evaluation.
Senator Merkley. Mr. Chairman, I think this is something we
need to take a further look at. The idea that scientists are
being told they can not talk to each other, even Zoom meetings,
in person, I do not think you get the best result having
individual people told they are in silos and have to operate
without the process of consultation. I am not sold. Count me
skeptical.
Ms. Freedhoff. I appreciate it. Thank you.
Senator Merkley. My final question, actually I am out of
time.
Senator Carper. Just make it a brief one.
Senator Merkley. OK. In terms of PFAS, it is not a short
question, so I may have to submit it to the record or just
followup with you.
Senator Carper. If we can do that, that would be good.
Senator Merkley. OK, that is what I will do. Thank you.
Senator Carper. Thanks very much.
Senator Ricketts, good morning.
Senator Ricketts. Good morning, and thank you, Chairman
Carper, and Ranking Member Capito, for holding this hearing
today. Dr. Freedhoff, thank you for joining us.
I have a few examples behind me of chemicals that have
undergone the TSCA process which are critical for global food
production. Formaldehyde is necessary for livestock production,
to prevent disease. While you all may know that Nebraska is the
Beef State, something you may not know is that we are also the
global leader in irrigation system production such as what you
see here, a center pivot, actually about 80 percent of all the
world's center pivots are made in Nebraska.
Vinyl chloride is critical for the irrigation tubing,
hoses, and drip lines. Both ethylene oxide and acetaldehyde are
used in the production of crop protection tools, protecting our
food supply from insects and disease. These examples really
exemplify the importance of predictable and reliable
permittance of chemicals.
As Governor of Nebraska, I implemented Lean Six Sigma for
our State agencies to improve our processes. My understanding
is the Trump Administration established an Office of Continuous
Improvement at the EPA to implement the Lean program at the
EPA. We talked about this a little bit yesterday, Dr.
Freedhoff.
I am just looking for a simple yes or no on these. Does the
New Chemicals program still utilize the Lean program?
Ms. Freedhoff. No, but we do seek to continuously improve
through many of the same approaches that are in Lean Six Sigma.
Senator Ricketts. Does the Office of Continuous Improvement
still exist at the EPA?
Ms. Freedhoff. That I am not sure about. I know there are
agency-wide conversations about ways to improve our processes
and when one part of EPA comes up with something, it is
actually shared throughout the agency.
Senator Ricketts. Well, there are clearly other process
improvement methodologies besides Lean Six Sigma. If you could
followup with me on the Office of Continuous Improvement, if
that still exists at EPA.
Ms. Freedhoff. Sure.
Senator Ricketts. Also, we have heard that one of the
problems holding up PMNs, Project Management Networks, are
changes to the staff contacts throughout the process. If a new
project manager is assigned to a PMN, will you commit to us
that that project manager will then notify the submitter within
a week to let them know there has been a change?
Ms. Freedhoff. I think that is an incredibly reasonable
idea. We would be happy to do that. I think that would improve
transparency for everybody.
Senator Ricketts. Great, thank you very much, Dr.
Freedhoff.
The EPA issues existing chemical exposure limits, in other
words, regulating chemicals throughout the workplace exposures.
However, they are multiple times more stringent than the rest
of the world. These limits are based on information from EPA's
Integrated Risk Information System, or IRIS program, which is
not congressionally authorized and is a hazards based program.
This is not consistent with the agency's statutory mandate
to complete risk-based chemical reviews using the best
available science, not to mention that OSHA already is
completing the work on this through some of their enforcement
permissible exposure limits. In addition, the American
Conference of Governmental Industrial Hygienists established
exposure limits far above EPA's ECHOs, Extension for Community
Healthcare Outcomes. These values are regularly updated
following industry standardization practices.
For many of the chemicals under EPA review, including
asbestos, methylene chloride, perchloroethylene, carbon
tetrachloride, and trichloroethylene----
Senator Carper. Could you say that again?
[Laughter.]
Senator Ricketts. I thought I did about as good as I could
the first time through.
The ECHOs have come out after the proposed and final risk
evaluation, some with proposed risk management rules which left
stakeholders with no real opportunity to comment on these
levels.
This is a significant problem that is compounded by the
fact that these numbers are extremely low, often below the
level of detection, and much lower than regulatory numbers in
the rest of the world, as we kind of mentioned.
Setting levels below the level of detection is a de facto
ban on these chemicals. For clarification, when you set a final
regulatory ECHO for industrial uses, does that mean there is a
level at which no unreasonable risk exists?
Ms. Freedhoff. I think what we are saying for some of those
levels is that the proposed exposure levels that came out
address the unreasonable risk that was identified in the risk
evaluation. It is important to understand that the risk
evaluations are prohibited by law from considering costs and
other non-risk factors, like the point you made about them
being unimplementable.
I think as we move through the regulatory process following
the risk evaluations, we are engaging pretty actively with
industry to make sure that we really understand what their
occupational safety practices can achieve. I think you will see
some shifts in our approaches between proposed and final rules
for some of the chemicals.
Senator Ricketts. OK, thanks. If I understand what you are
saying, and correct me if I am wrong, the process has been set
up, and the rule has been established and the law has been
passed actually to make it so that you recommend some of the
risk levels below detection level because you are not allowed
to consider other factors? Is that accurate?
Ms. Freedhoff. Not quite. In the risk evaluations, we are
not supposed to be considering costs or other non-risk factors.
When we write rules, we 100 percent consider those things. I
think in an exchange I had earlier with Senator Boozman, I
believe it was, going forward, if we get a draft risk
evaluation that leans to a masked outcome that the draft
proposed occupational safety limit is below background levels
for that chemical, we will see very clearly in the draft risk
evaluation that that number will not be the basis of our rule.
Senator Ricketts. OK, so it is not a de facto ban in that
case, then?
Ms. Freedhoff. No.
Senator Ricketts. OK, thank you very much, Dr. Freedhoff, I
appreciate your explaining that to me. Thanks.
Senator Carper. Senator Ricketts, thank you for those
questions.
I think Senator Fetterman is trying to get here to join us.
Do we expect any other Republican colleagues to join us?
Senator Lummis, OK, good.
I want to return to the issue of new chemical review for a
minute or two. As you know, our committee has consistently
heard concerns from stakeholders about the pace of new chemical
reviews. Specifically, the chemical industry believes that EPA
is moving too slowly, whereas others are concerned that EPA is
not being thorough enough.
Dr. Freedhoff, your office has taken some innovative
approaches to improve the pace of new chemical reviews. We
talked about some of that already. Would you please elaborate
on some of those approaches and specifically, what has worked
well, and how have those approaches allowed EPA to review these
new chemicals faster, while also being more thorough? Where
might there still be room for improvement? In the spirit of
everything that we do, we know we can do better. Go ahead.
Ms. Freedhoff. Thanks for that question, Senator Carper. I
think we have talked about new chemicals a little bit in this
hearing, and I really do think there is still upside in what
the agency can deliver. I think we have already demonstrated
some, but I think we can continue to do more.
It used to be when EPA didn't know enough about a new
chemical before the 2016 amendments were passed, that chemical
went right into commerce without a formal EPA review. As a
result, there are a whole bunch of types of chemistries that
EPA never really had to write anything down about. One of the
things we have tried to do is work to write down the science
policy that would allow us to standardize and streamline the
review for chemicals that we see a lot.
One example, mixed metal oxides, which are used by the
battery sector in particular. We had companies tell us that
they expected to send us dozens of those every year as we move
to increased electric vehicle production in this Country. We
decided we really needed to get ahead of that and worked on our
science policy and risk assessment approach for that class of
chemistry.
We are doing that with other sectors, too. The fragrance
sector has a couple dozen PMNs that have been stuck at the
agency because of science questions like that. While I do not
think we can do the exact same thing for the fragrance sector
as we did for the battery sector, we are convening a scientific
workshop with them and other stakeholders next week, I believe,
to try to work to figure out what the answers to those
questions are, so that we can move those PMNs along also.
Really it is a class work smarter, not harder, modernize
our approaches, be strategic about where we focus our resources
and try to increasingly improve both our speed and our
protectiveness.
Senator Carper. Let me ask one more question, then we will
turn to Senator Lummis. There are differences of opinion, as
you know, about the amount of money that you need to run the
programs in your agency. The House has proposed further cuts to
the TSCA program in its Fiscal Year 2024 appropriations bill.
Can you give us a sense of how you will prioritize your work if
this is enacted? What will have to be sacrificed?
Ms. Freedhoff. Thanks for that question. It is important to
remember, before the law was changed, EPA did zero
comprehensive risk evaluations. Of the 30 chemicals that have
gone through the process, we have met the statutory deadline
for only one of them.
Before the law was changed, we wrote zero comprehensive
rules to protect people against some of the most dangerous
chemicals that have ever been made or used in this Country. Now
we are in the middle of working on 10 of those. We have missed
the statutory deadlines for those as well.
We have talked about our consistent struggle, since the new
law was enacted, to meet Congress' expectation that new
chemicals would been reviewed protectively within 90 days.
The House budget would take us back to the budget of the
old law that didn't do any of the things that the new law has
told the agency to do. What it means is that the workers and
communities who have been waiting for decades to get the
protections they need will have to wait longer. What it also
means is that the new chemistries that are needed to reshore
the domestic manufacturing of everything from semiconductors to
biotechnology to refrigerants to comply with the EMAC,
Environmental Management Assistance Compact, to all of these
other chemistries, they will need to wait a little bit longer,
too. We simply will not have the resources to do what Congress
expected us to do.
Senator Carper. All right. I think that is an important
point for us to keep in mind as we go through the
appropriations process in the days to come.
Senator Lummis, we are glad to see you. Welcome aboard.
Senator Lummis. I am delighted to see you too, Mr.
Chairman. Thank you very much for holding this hearing, and
thank you, Ranking Member Capito.
My questions at least are going to start with PFAS. As you
know, there is an ongoing debate over the definition of PFAS as
it applies to a range of Federal regulatory regimes. I am
concerned that there is no current consistent agreed-upon
definition for these chemistries being used across Government
agencies.
While some PFAS chemistries may need urgent regulations to
keep our communities safe, I am concerned that EPA is
needlessly restricting critical PFAS chemistries essential for
American manufacturing. I am not the only one that is
concerned.
Mr. Chairman, I would like to ask unanimous consent to
enter into the record a report from the Department of Defense
on critical applications of PFAS substances.
Senator Carper. Without objection, so ordered.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Lummis. Thank you.
Now, I want to quote from the Department of Defense report.
It says, ``Losing access to PFAS due to overly broad
regulations or severe market contractions would greatly impact
national security and DOD's ability to fulfill its mission and
impact domestic industrial manufacturing and supply.''
The report raises concerns about regulatory risks to our
Nation's national security and industrial base and overall
economy on page 15. After all, as the report reminds us, the
DOD is reliant on the commercial industry for its applications.
As the report cautions, there is no consensus on PFAS
definitions. A simple grouping together of over 38,000 specific
individual chemicals does not inform whether a compound is
harmful or not.
First question. Are you aware of the 2023 DOD report
regarding PFAS?
Ms. Freedhoff. Yes, Senator, I am aware of it.
Senator Lummis. OK. Does the EPA intend to establish an
expedited review process for PFAS with less concerning
hazardous profiles, or for those used in limited volumes but
critical to technological innovation?
Ms. Freedhoff. Yes, actually my office has already
developed a framework just like that. What it basically says is
if the PFAS is going to be used in a sophisticated industrial
environment, like the semiconductor industry has, workers are
protected, environmental releases are controlled, there will be
a path through the New Chemicals program for PFAS like that. We
agree that while PFAS have unquestionably contaminated a large
number of places in the United States, we also think that if
the new chemicals provisions of the 2016 law had been in place
all along and EPA had been charged with making sure that the
new chemicals were being used responsibly, we would have a lot
less PFAS pollution in the Country than we do now.
Senator Lummis. Have you met with DOD to try to go through
with them which of those PFAS chemistries they believe are
pivotal to national security, as they mentioned in the report,
and those that are not?
Ms. Freedhoff. I met with DOD myself a number of times, not
just on PFAS but on other chemicals that are going through the
TSCA process. We are very committed to continuing to work with
them to make sure that our work in the Chemicals Office does
not undermine military readiness or remove their access to
things they need to keep us safe.
Senator Lummis. Can you help us by returning to this
committee a list of these 38,000 chemicals that DOD feels that
they need to have access to without undue restriction, and
those that you feel are appropriate for higher scrutiny?
Ms. Freedhoff. I am not sure how I would go about that list
without knowing exactly what DOD needs. I can also say that
there are more than two options under TSCA. It is not use it
without restriction or ban it. There is also, use it
responsibly. I think that is what we are striving for when it
comes to critical uses of chemistries, not just PFAS, but some
of the others that we are looking at as well.
Senator Lummis. OK. What might that look like?
Ms. Freedhoff. It could just be, do not dispose of it in
sources of drinking water. It could be, make sure that when
your workers are handling it, they are protected, either with
PPE, Personal Protective Equipment, or with engineering
controls that prevent exposures to them during key tasks. It is
a whole range of things. I do not think the choice is ban them
all or continue as we have for the past decades in ways that
clearly harmed human health and the environment.
Senator Lummis. As you know, we are sometimes demanding
that we onshore products that we have offshored. Then we want
to restrict them from onshore manufacturing to the point that
we can not onshore them.
We are sort of giving with one hand and taking with the
other. I think this is an area, chemistry, where there needs to
be some very careful consideration, working with industry,
working with Department of Defense to make sure that we are
finding the sweet spot.
I thank you for your testimony. Mr. Chairman, I yield back.
Senator Carper. Thank you for those questions.
Next, we are going to recognize Senator Merkley again, if
we are not joined by anyone else. Senator Capito will be after
Senator Merkley.
Senator Merkley. Thank you very much, Mr. Chairman.
As long as we are on PFAS, EPA finalized a rule in
September of last year that requires reporting for
manufacturers to share data about the chemical identity, the
uses, the volumes made and processes, so on and so forth.
Dr. Freedhoff, when will that data collected by EPA be
available to the public?
Ms. Freedhoff. I know that it is due for different
reporters at different times. I think we are expecting to get
it next fall, to start getting it next fall. I know we will be
working to make as much of it public as we can.
Senator Merkley. Does that mean it is not clear that the
public will have access to that data?
Ms. Freedhoff. The law requires us to protect confidential
business information, so if we get something into the agency
that is marked that way, we will have to take some time to
review it and make sure that we can get it into a form that the
public can see.
The entire point of that data collection effort, which was
something that this committee actually wrote the law directing
us to do, was to make sure that data was available and useful
to everyone who might want to see it, including members of the
public.
Senator Merkley. Yes, I hope that that information, which
will help inform the PFAS debate extensively, is available to
help inform the debate. Thank you, and the understanding of the
challenge.
I want to turn to plastics-to-fuel. Pyrolysis is being
advocated by many to be able to essentially use heat to return
plastics down to a State where it is essentially once again
fuel. The EPA has studied, well, what happens if you have that
in a marine setting, what happens if you have that in an
airport, a jet setting?
EPA's model produced a lot of concern, a lot of articles
written about the high level of toxicity really was exceeding
the standards that we normally have, producing cancer in one in
10,000 as opposed to the standard of one in 1 million, the one
in four cancer risk from a lifetime of exposure.
Then I think EPA has said, oh, well, that is scary. Let's
just set this whole model aside, and then approve the
chemicals. How does setting a whole model aside and just
approving the chemicals serve the scientific process and the
whole goal of TSCA to evaluate chemicals with deliberate
scientific analysis?
Ms. Freedhoff. You said a lot in that question, Senator.
First of all, the original chemicals that took the plastics and
turned them into fuels were approved in 2015 and 2019. What we
looked at was taking what companies wanted to do, which was
take small amounts of those chemicals, mix them with
traditionally drilled fuels, put them in a refinery, and come
out with something that looked for all intents and purposes
exactly like normal jet fuel or normal marine fuel.
I think our staff was quite convinced that the safety
profile of the resultant fuels was going to look exactly the
same as what you would get if you just drilled for oil and put
the oil through a refinery. That said, I do think that when our
exposure model spit out numbers like that, we should have done
a better job at reality checking ourselves.
When we did that after the fact, we learned that it was
sort of clear that those exposure models are exceedingly
conservative. They basically assume that 100 percent of the
fuel burns in one location and the same person stands there and
breathes 100 percent of the exhaust fumes from the plane in at
one time.
That is clearly not a real world scenario, not a real world
risk. It was on us to explain it better, and we are learning a
lot from that experience.
Senator Merkley. Or to go back and say, we think our
assessment model was flawed, and now we are going to get a more
realistic assessment model and actually use an assessment model
rather than just throwing it aside and ignoring it.
Ms. Freedhoff. I think what we learned, normally when we
make these, when we do not have actual exposure information,
which is often the case for a new chemical, we just assume that
the worst case scenario is some set percentage of it gets into
the environment, or some set percentage of it exposes workers.
That model fundamentally fails when the end product is a fuel
that is supposed to be burned.
I agree with you; we should not be doing it that way for
transportation fuel.
Senator Merkley. I do think the reason it is raising
concerns is that the plastics themselves have huge numbers of
contaminant chemicals. The pyrolysis process vents off a lot of
stuff, and often, we have made an emphasis on environmental
justice in this community, in communities that are poor, in
communities that are primarily Black and Brown communities.
Then those same contaminants survive and are in the fuel
when it is burned. Therefore, our evolving understanding of
this potential pathway, which could involve fuels that are not
just a slight amount added to some other fuel, but burned in
the whole as folks try to get a more circular economy. These
are significant concerns that should not be ignored in this
process.
Ms. Freedhoff. I agree with you. I think we know a lot more
about those potential impurities now than we did in 2015 and
2019 when those original chemicals were approved. I think our
policy going forward, including for these particular fuels, is
to make sure that there are not impurities like that, if
companies are going to move forward with a process that creates
those fuels.
Senator Merkley. Thank you.
Senator Carper. All right, thanks, Senator Merkley.
Senator Capito?
Senator Capito. Thank you, Mr. Chairman.
I am going to kind of go back on a few things that have
been alluded to in some of the questions. It seems there has
been a question of EPA's interpretation of what is reasonably
foreseen. Is it reasonable to foresee that somebody would drink
bleach? Of course not. None of us are going to drink bleach.
Well, I wouldn't say none of us.
These speculative, unintended uses of chemicals are being
used to justify overly stringent restrictions. Do you believe
that every potential use of a chemical, including the
intentional misuses, are reasonably foreseeable or a reason to
restrict?
Ms. Freedhoff. No, I do not.
Senator Capito. Well, good. I believe what we are hearing
too is that sometimes your office will continue to assume non-
compliance on OSHA standards. Senator Ricketts kind of alluded
to the OSHA issue. I, in my opening statement, talked about a
mission creep here.
What is your relationship in terms of, how do you put the
bright line between where you are and where OSHA is? It sounds
like you have more than enough on your plate. I am not sure you
want go into what OSHA is doing as well.
Ms. Freedhoff. TSCA says that we have to consider the risks
to potentially exposed and susceptible subpopulations. That
term is explicitly defined to include workers.
Senator Capito. It includes what?
Ms. Freedhoff. It includes workers. Explicitly by law it
includes workers. OSHA wrote most of its chemical-specific
rules in the 1970's. When you go on their website, the very
first sentence that you read is that their standards are
outdated and inadequate for the protection of worker health.
That is what OSHA says about its own chemical safety worker
rules.
The other thing is that OSHA rules do not cover everybody.
They do not cover self-employed workers and they do not cover
public sector workers that are not subject to a State OSHA
plan. Even if the OSHA rules weren't outdated and inadequate
for the protection of worker health, we would still need to
recognized that some of the workers that the TSCA risk
evaluation uses cover wouldn't be subject to them in the first
place.
What I do think we are trying to do is work extremely
closely with both OSHA and NIOSH, National Institute for
Occupational Safety and Health. We are trying to align what we
write in our final rules to be as consistent as possible with
what their practices and approaches are for things like
monitoring and detection. I also think we are working really
closely with industry, because in many cases, industry has gone
way beyond those 1970 standards when it comes to protecting
their workers, because those standards are outdated, and those
sophisticated companies know it.
We are also trying to align with the best industry
practices that we are made aware of as well, as we make sure
that our final rules are implementable.
Senator Capito. Well, I mean, I guess my interpretation of
that would be, there is laxness in, or inadequacy in a
particular different part of the Department of Labor, is
obviously where OSHA is. I just think with what we have kind of
uncovered and agree where some of the issues are, staying in
the lane would probably be helpful.
Let me ask you another thing to clarify. I said this in my
opening statement, and I want to make sure we are in agreement
here, where I said that companies are opting to go offshore to
create chemicals and that your applications for new chemicals
are down, therefore your user fees, we are getting to the
resource thing, the user fees, the amount of people paying use
fees is going down.
Is that an accurate statement from your viewpoint?
Ms. Freedhoff. I do not think so. I think it was accurate
for a couple of years after the enactment of the 2016 law. We
have actually seen new chemical submittals kind of come back up
to what they have been historically in the last couple of
years.
Senator Capito. Well, we need to follow that, because I
think that is an important issue in terms of being able to move
forward.
Another suggestion, question, is, there is an ability,
because you are talking about being resource constrained, there
is an ability for you under the Intergovernmental Personnel Act
to be able to access other Federal employees at no cost to your
agency for specialized things. We see this in endangered
species, Fish and Wildlife, we see them borrow from other
agencies when they have a large request. I have seen that in my
own home State.
Is this something that you have considered to fill in the
gaps that you say you have?
Ms. Freedhoff. Actually, we have already done that. Under
the Fiscal Year 2022 budget, which gave us a really small
increase in resources, and wasn't enacted until March 2022.
That was sort of more than a year of this Administration with a
flat budget. We actually did borrow some staff from other parts
of the agency, specifically for New Chemicals, because of the
dire situation that New Chemicals was in.
I think it is one of those things, though, that most
Federal agencies, including EPA, have resource issues and have
workload issues. Other parts of the agency also have laws that
they have to implement.
There is not an infinite capacity for us to be able to do
that. We have done it in a temporary basis with New Chemicals.
Senator Capito. OK, so I think we have a lot of agreement.
We will keep working on the list that we put forward.
I do not want the hearing to end, to have any kind of
misunderstanding that questions or accountability issues means
that any of us, certainly me in particular, would want to
sacrifice any kind of safety issues around a chemical use for
speed. We do have certain deadlines in the law. You were
probably around when TSCA was written, and those were
established to be reasonable deadlines at the time. There is a
reasonable expectation that those can be met.
I think, while I expressed to you last week the frustration
I have as a member, I think probably all of us, does not matter
what side of the aisle you are, it may matter what
administration it is, it is always, I just need more money, if
I had more money, I would solve every single problem.
Sometimes, we have to be more efficient, we have to be more
innovative, we have to be more, use the authorities, like Title
42 that we have to be able to move forward for more specialized
investigations, listen more to the stakeholders.
All these kinds of things I think we can make improvement
on, understanding that the resource issues--but you have gotten
more resources, and certainly EPA, 2,000 more people. I mean,
could the Administrator reprioritize? This is an important
area.
Another thing, then I will get off my high horse here, is
if we look at chemicals, I think the assumption is sometimes,
well, you just want more chemicals that are going to be more
hazardous and more flammable, and everybody thinks it is always
the bad part of chemistry.
The good part of chemistry is getting held up, too. The
chemistries that would take our old chemistries off the shelf
and make improvements, have better health outcomes, maybe even
be more efficient, maybe even be more economical to use and
certainly can be made here, they are getting held up at the
same time.
We will just continue to monitor this. I appreciate your
frankness, and thank you for coming.
Senator Carper. Senator Markey, if you are ready to go
again for another round, I will recognize you. Otherwise we
will go to Senator Whitehouse.
Senator Markey. I would love to hear his questions.
Senator Carper. Senator Whitehouse?
Senator Whitehouse. Thank you, Senator Markey. Thank you
very much for being back here again on one of our favorite
topics and one where I think we did some very good bipartisan
work. I think of Senator Inhofe, who was not always somebody
that I agreed with, and our good work together on this issue.
I would like to ask you about the process involved. As you
recall, as you know, we set up a process for the industry to
make application to go through the TSCA process. What I hear we
have seen is a lot of industry revisions of the application.
Could you tell me first of all, is that true? How often is
that happening? Are there multiple revisions sometimes, not
just one but a cascade of cumulative revisions? What effect
have those revisions had on the ability of EPA to meet the
schedule and proceed to the conclusion of the process?
Ms. Freedhoff. Thanks very much for that question, Senator.
You are right, sometimes companies do come in toward the end
and give us new information that we wish they would have given
us at the very beginning. That causes us to have to rework,
redo parts of the risk assessment, and that does not just delay
their chemical, it delays everybody else who is waiting behind
them in line.
I think some of that is a reflection of the still pridian
law, companies do not necessarily know what we need to know to
review their chemicals quickly. One of the things that we have
really tried to do is outreach to industry, do webinars, do
trainings, really kind of tell them from the beginning, this is
what we really need to review your chemical as quickly as
possible.
Some of those efforts are working. I think we could do
more, and I think industry could do more to get a complete
application in front of the agency in the first place. I think
it would have benefit to everybody.
Senator Whitehouse. Is the source of these revisions just
confusion? Or do you think there is also some motivation to
delay?
Ms. Freedhoff. I do not think there is motivation to delay
on the New Chemical side. I think what happens is they didn't
write down in their application that they were going to dispose
of the chemicals properly, and then when we do our risk
assessment, we assume they are going to release it to water.
Then they see that, and they say, oh, we weren't going to do
that, and we say, well, you should have told us that from the
start. It is a lot of those kinds of changes. I do not think
they are intentional. I think they are a little bit a lack of
experience, a little bit of a failure to realize that the more
they give us, the better it is for them.
Senator Whitehouse. Okay. You think the kinks in the
process have now been worked through pretty well?
Ms. Freedhoff. I think it is a work in progress. I think we
have made a lot of improvements, but it is important to note
that before the 2016 law, we only did formal safety reviews on
about 20 percent of new chemicals. Now we have to do them on
100 percent, and for the first 6 years of the law, we got zero
extra dollars.
The agency was sort of hamstrung for a good, long time. Now
that we have gotten a modest increase in our budget, we are
working to build in some of those efficiencies without losing
the protectiveness of what we are supposed to be doing.
Senator Whitehouse. How many employees does EPA have?
Thirteen thousand?
Ms. Freedhoff. Ish, yes. In the New Chemicals Division, we
were able to hire 14 new people with the Fiscal Year 2023
budget increase, with a handful more that are still in the
works. We are not at 15,000 people in the New Chemicals
Division.
Senator Whitehouse. I get that. When I worked in the
Department of Justice, and there was an urgent matter, they
would detail people from the field to headquarters to work on
it, just as they have done with the January 6th prosecutions. I
hope that EPA is at least considering borrowing from the
regional offices and putting people in detail for significant
projects like this, where the immediate staff are not
sufficient to meet the new need.
Ms. Freedhoff. We have done some detailing, and will
continue to do that. I do think some of the expertise we need
is pretty specialized. There just are not that may
toxicologists around who know how to study exposures.
Another thing we have done is we have dedicated a person in
the Toxics Office to really revamp our recruitment process, and
really go places to advertise the jobs that we have that we
have not previously gone. Now we are getting a lot of qualified
applicants for those jobs, which is great. It hasn't always
been the case.
Senator Whitehouse. Well, thank you. It is great to see
progress in this area.
Thank you very much, Chairman.
Senator Carper. Thank you, Senator Whitehouse.
Senator Fetterman, welcome. You are recognized. Good to see
you.
Senator Fetterman. First, I just have to acknowledge your
recent happy birthday, Mr. Chairman. Sixty-three, was it?
[Laughter.]
Senator Carper. God bless you.
[Laughter.]
Senator Fetterman. Thank you.
I live across the street from a steel mill, actually the
largest steel mill in my State, one of the remaining ones left.
I have some really personal experience of myself and my family
of the impact of the industrial sector and what that can have
on the surrounding community.
I do not believe that we have to choose between keeping
good union jobs and also be averse to a clean, safe
environment. Do you agree, how you are seeing the dynamic play
out, how you lead the EPA's work regulating toxic substances?
Ms. Freedhoff. Yes, Senator, I do. As we talked about last
week, I really do not believe you have to choose between good
paying jobs and having clean air to breathe and clean water to
drink.
One thing that we have been doing is working really hard
with the sectors that are trying to bring good jobs into this
Country to make sure that we are approving their chemicals more
quickly, or as quickly as we can. For example, we have
prioritized the chemicals that are needed by the semiconductor
sector, by the batter sector, by the biotechnology sector, and
put those to the front of the line whenever we can. Now we
approve those in about a third of the time as compared to other
sectors.
We do think that you can use chemicals responsibly, keep
your workers safe, keep communities safe and do well as a
company.
Senator Fetterman. The EPA, are you familiar with the
history, who established the EPA?
Ms. Freedhoff. President Nixon.
Senator Fetterman. Nixon, well, he was a Republican, right?
Ms. Freedhoff. He was.
Senator Fetterman. That is right, he was, oh my gosh.
Actually the fact that the EPA was funded by a Republican, and
now it is really a shame that sometimes that has drifted away
from us, and that gets weaponized here, where two things can be
true at the same time, that we need to maintain and protect
good union jobs that sustain the community and families, but
also, we know a clean environment is pretty useful. I think it
is useful all the time. I think both can happen together. I
would like to remind everybody that a lot of important
environmental things were done under leadership of a Republican
administration.
Now moving on, of course we are all familiar with the
Norfolk Southern train derailment in Ohio. That is very close
to my State's border. It released more than 100,000 gallons of
vinyl chloride into our community, as I am sure you know. Last
month, the EPA announced that the vinyl chloride would be
prioritized for considering under the Toxic Substances Control
Act. We are still looking at years of that evaluation to be
finished, and a safety protocol to be recommended. Why does
this process take so long?
Ms. Freedhoff. Thanks very much for that question, Senator.
Ironically, it was the Nixon Administration also that ked
Congress to write the Toxic Substances Control Act. They
actually used vinyl chloride as one of three examples for why
that law was needed back in 1971. They basically said, when
they asked Congress, this is what they said: ``We should no
longer be limited to repairing the damage after it has been
done, nor should we continue to allow the entire population or
the entire environment to be used as a laboratory.'' That was
the Nixon Administration's reason for why Congress had to write
TSCA in the first place.
When Congress rewrote that 1976 law, it was because it
wasn't effective. It was because when EPA tried to ban
asbestos, a chemical that has killed tens of thousands of
people every year for decades, EPA's ban was overturned in
court and it rendered the original law unable to be used. When
Congress came together and wrote the 2016 law, it defined
fairly prescriptively the process by which EPA was supposed to
review those thousands of chemicals, including vinyl chloride,
that hadn't been evaluated before.
The timelines in the law are very clear. We need to spend a
year with two public comment periods before we can start work
on vinyl chloride. Once we do start work on vinyl chloride, the
law says we have three to three and a half years to finish our
work and really and really comprehensively assess all the
risks. After that, it is a year to propose a rule and a year
after that to finalize a rule.
It is a long process. The idea was, instead of doing
little, we will regulate this use here and that use there, the
idea behind the law was, we really want to comprehensively
study all the ways in which a chemical is made and used, and
write a comprehensive rule using that best available science in
order to give the public confidence that the chemical can
continue to be used safely for the uses that we think can
continue.
Senator Fetterman. Mr. Chairman, thank you, and thank you.
Senator Carper. Senator Fetterman, thank you for those
questions. Senator Lummis, you are recognized again, and a vote
is underway. I think we are about 10 minutes into our first
vote of a couple of votes. Senator Lummis, then Senator Markey.
Senator Lummis. Thank you, Mr. Chairman. I do appreciate
the perspective of the gentleman from Pennsylvania. I too live
next to a refinery and have benefited personally from the
existence of the RCRA law, without which we would have had no
remediation of significant migration of hydrocarbons into the
creek where our cattle drink. This is a bipartisan subject,
this is not partisan. Reasonableness becomes the issue.
I want to return to the ECHOs Draft Rules. I have heard
from experts in industry who say there is no realistic way to
implement some of the draft rules on ECHOs. My question here
is, when you hear from industry that there is no realistic way
to implement a draft rule, will any of the proposed changes be
adopted between the proposal and the final rule?
Ms. Freedhoff. I do think we are working quite closely with
industry to understand what might be needed by way of
adjustments to make those more implementable. I will say that
for a number of our chemicals, the data we have shows industry
is already either meeting our proposed levels or pretty close
to it.
They will change between proposed and final sometimes.
Sometimes it might be more time to come into compliance,
sometimes the numbers themselves might change. I think when we
propose a rule and look for public comment on it, we are
serious about reviewing those comments and making adjustments
whenever we think they are needed.
Senator Lummis. Question about existing chemicals that were
never peer-reviewed. It is my understanding that EPA's worker
exposure levels for existing chemicals were not peer-reviewed.
Can you commit to ensure there will be peer review and public
comment on these values going forward?
Ms. Freedhoff. Just to elaborate a little bit, the last
administration wrote the risk evaluations. I think they were in
such a rush to get them done that they didn't really think a
few steps ahead for how they were going to do the worker
protection, how they were going to address the worker
protection risks that they found. That is why those exposure
limits came out after the risk evaluations came out.
I will say, all of the data that went into deriving those
limits was peer reviewed. That said, I also know that industry
really wants to see them earlier in the process, really wants
to see them go through the peer review process, and I think
that is entirely reasonable. That is what we have started to do
and will continue to do going forward.
Senator Lummis. Thank you. Question about hazard based
review of a new chemical. Can you explain to me what factors
are considered in a hazardous based review of a new chemical,
and how that differs from the standard applied to older
chemicals under TSCA?
Ms. Freedhoff. Sure. I think with existing chemicals, we
have a lot of data. Sometimes we have data, like in Woburn,
Massachusetts, where we know that exposure to TCE caused a
cancer cluster. We have information about what that chemical
did to people that were exposed to it.
With new chemicals we do not have that usually. What we
have sometimes are tests that the company has put together,
sometimes using non-animal testing to show what the new
chemical's expected hazard might look like. Sometimes what we
do is we look at the structure of the new chemical and compare
it to something that do know something about, and infer what we
can from reading across what we know about an old chemical to
what we can expect to happen from the new.
It is a variety of techniques, but with new chemicals they
are by definition new, there is less information about them.
Senator Lummis. I appreciate that.
Mr. Chairman, I want to just return for 1 second to the
PFAS discussion, and just remind you that DOD's report kind of
sets off some alarm bells about the importance of working
closely with DOD. His debate over the definition of PFAS is
going to be extremely important to them. Just to implore you to
work closely with Department of Defense on these definitions,
and to try to make sure that we are not compromising our
national security or our defense posture by a regulatory regime
that is so rigid that it provides no escape valve.
Thank you. Thanks for being here. I yield back.
Senator Carper. Thanks for your focus on PFAS and permanent
chemicals. It is much needed and much appreciated.
We have been advised by the cloakroom that we are almost 20
minutes into our first vote. Senator Markey, I am going to
recognize you but not for a real long time. Thank you.
Senator Markey. I appreciate it. I was willing to wait a
good long time, in my Chevron deference to Senator Whitehouse
to go first, not understanding all of the implications of that
decision in terms of other people who would be asking
questions.
[Laughter.]
Senator Markey. I thank you for that.
The Trump Administration violated TSCA by ignoring fence
line communities in its chemical exposure and risk analysis.
What is a fence line community? Well, I guess I grew up in a
fence line community, because I lived three blocks from the
Malden River, and my mother told me when I was 10, whatever you
do, Eddie, do not swim in the Malden River, because it was
black, with a kind of pre-Jimi Hendrix purple haze over it,
because of the coal companies, the chemical companies, all of
the polluting companies right along the Malden River.
Just do not swim in that river. There were no fences in
that era. Now the company has put up a fence. One hundred feet
later at the homes of the kinds who were playing, and then it
goes out for two or three miles.
There was an underestimation of the harms and it
undervalued the lives of environmental justice communities
living near polluting facilities. The Biden Administration made
the right call by changing that harmful policy of the Trump
Administration by actually look at the risks that dangerous
chemicals pose to fence line communities, people who live right
up next to the facilities.
Dr. Freedhoff, when done as required by TSCA, do fence line
analyses help EPA better protect vulnerable communities by more
fully accounting for how those communities get exposed to
dangerous chemicals?
Ms. Freedhoff. Thanks very much, Senator, and absolutely. I
toured a number of those communities and visited with them in
Houston. It was just unbelievable to be standing in the middle
of a playground and seeing 10 smokestacks literally on the
other side of the road. Unquestionably there are some
communities that are more exposed to more chemicals than
others.
Unquestionably, even though TSCA requires us to look at one
chemical at a time, the fact is that you sometimes breathe more
than one chemical at a time and you sometimes drink water that
has more than one chemical in it as well.
What we have been doing is trying to create the scientific
tool box, so to speak, that will let us really understand those
risks, the risks from more than one chemical, the risks from
exposure through both the air and the water to the same
chemical, and the different risks that some communities have
compared to others.
Senator Markey. Thank you for that. There was like a cloud
over my ward growing up. In fact, there was a union leader in
my office last week, and we were talking about the Lewis Candy
Company where I worked making gum drops and jelly beans when I
was 16, right on the Malden River.
He said, oh, yes, everyone knew there was like a huge black
cloud over that building, which we didn't even think about,
because that is just the way it was along the Malden River,
just this big cloud which today would be something that
obviously families would be concerned about young people being
exposed to.
Dr. Freedhoff, what would you say to those who say that
TSCA is not an integral part of the EPA's ability to use
science to keep the United States and workers clean and
healthy? What would be your message to them?
Ms. Freedhoff. There are people who say that TSCA is not
supposed to be for protecting workers who might be exposed to
chemicals inside facilities. There are people who say that TSCA
should not be about protecting people in communities who
breathe or are exposed to chemicals from breathing air or
drinking water.
I kind of struggle to understand what TSCA is about, if it
is not supposed to be about protecting the people who work with
chemicals, and it is not supposed to be about the people who
are exposed to those chemicals in their homes and communities.
I think very clearly that is what it is about. It is important
for us to be writing rules that are implementable and do not
prevent the reshoring of jobs in this Country.
I really do not think you have to choose between jobs and
safety. We can do both things, and I think we have to.
Senator Markey. I agree with you. I was a worker in one of
those facilities. Absolutely, it is historic work that you are
doing, and clearly within the full intent, the penumbra of what
the law intended. It is to protect people from these dangerous
chemicals and you are doing an historically great job in
accomplishing that goal.
Thank you, and thank you, Mr. Chairman.
Senator Carper. Thank you, Senator Markey, very, very much.
Dr. Freedhoff, is there anything you have not been asked,
you have been asked a lot of questions here today, but anything
you might like to have an opportunity to just very, very
briefly highlight before we close?
Ms. Freedhoff. Honestly, all I would say is that I really
value the bipartisan engagement on EPW. It was integral to
getting the law passed in the first place. EPW was really the
center of all of those years of work to get the law over the
finish line. I really do welcome and appreciate the ideas, all
the constructive engagement, and all of the collaboration as we
work to implement the pridian law.
Senator Carper. My colleagues have heard me say over and
over again, bipartisan solutions are lasting solutions. It took
a hard-fought, difficult struggle to get us to where we
actually could enact and sign TSCA into law. Our thanks to you
and all the staff folks who helped us in those days to get the
ball into the end zone.
My dad used to say, some of the hardest things to do are
some of the things that are most worth doing. Passing TSCA was
a hard thing to do. It is not enough for us to just say, we are
going to pass this bill, and that is that. We have a
responsibility to make sure it is being implemented in the
spirit it was intended.
We need to make sure that folks who are needed to help run
these programs are well chosen and they do a good job. We have
to make sure that funding is provided. In this case here, we
have two major sources of funding, one is EPA has the
opportunities in those fees, and we have the obligation to
provide reasonable appropriations to make sure they are being
well utilized.
I want to comment you. I have talked to several of our
colleagues who said that you have taken time to come and meet
with them and talk with them and their staffs. I urge our
witnesses to do more of that. I think it pays great benefits.
President Biden likes to say, all politics is personal, all
diplomacy is personal. It always has been, and it continues to
be that.
The last thing I would say, there is a shared
responsibility in terms of oversight. We have a responsibility,
and the House has that responsibility, and we need to work in a
spirit of collaboration and cooperation with them and the
administration and other interested parties.
Not forgetting the football playoff season, a guy who pulls
for the Eagles pretty regularly, I am a great Andy Reid fan. He
used to coach for the Eagles. As he used to say, it is not time
to spike the football, and it is not time to spike the football
on this front either.
Thank you for joining us today. Thanks even more for your
service to our Nation, and our thanks to your family for
sharing you with us for all these years. We appreciate your
dedication and your insight into some of the challenges that
EPA is facing in the implementation of this legislation. I
believe both you and the members of the committee are committed
to addressing TSCA implementation challenges. We also have a
shared interest in both protecting people from exposure to
harmful chemicals, and preserve our Nation's ability to compete
and bring innovative chemicals into the market.
I am an optimist by nature, and I am optimistic that we can
work together to continue to make progress. With the right kind
of leadership here on this side of the dais and on your side, I
think we can continue to make progress.
Before we adjourn, a little bit of housekeeping. I want to
thank our staffs, your staff, and also the staffs of our
committee for a lot of work that went into the preparation of
this hearing. I just want to say a special thanks to everyone,
and Senator Capito.
Senators will be allowed to submit written questions for
the record until the close of business on Wednesday, February
7th, which is about 2 weeks from today. We will compile those
questions, we will send them to our witnesses who are going to
be asked to respond by Wednesday, February 21st.
With that, it is a wrap. This hearing is adjourned. Thank
you so much.
[Whereupon, at 11:52 a.m., the hearing was adjourned.]
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